A rule placed on the regulatory agenda to change labor certification could make it more difficult for employment-based immigrants to obtain permanent residence. The Department of Labor immigration rule will likely change employer obligations for PERM or permanent labor certification. The Trump administration has imposed measures to prevent highly skilled individuals from working in the United States. A presidential proclamation imposed a $100,000 fee on the entry of new H-1B visa holders, and a proposed rule to change prevailing wage levels may price many H-1B visa holders and employment-based immigrants out of the U.S. labor market.

Labor certification is required for most employment-based immigrants, and failing to receive it could prevent a highly skilled individual from gaining a green card and the opportunity to live permanently in the United States. Companies recruiting at U.S. universities find that international students account for approximately 75% to 80% of full-time graduate students in AI-related fields, such as computer and information sciences. Before being sponsored for permanent residence, many foreign nationals first work in H-1B temporary status.

Labor certification can take two to three years. Obtaining a prevailing wage determination, the first step in the process, takes three to eight months and recruitment lasts a minimum of 60 days and can extend beyond that period.

PERM is the most time-consuming part of the employment-based green card process. The Department of Labor website lists 403 days as “the average number of days to process PERM applications” for an analyst review and 290 days for an “audit review.” That is an improvement from December 2024, but still a lengthy period.

The Current Immigration Process Does Not Reflect Economic Or Business Reality

Analysts and attorneys say the Department of Labor’s labor certification process is not grounded in immigration law and does not reflect how companies recruit and how the economy creates jobs. U.S. immigration law does not require companies to advertise for positions or to hire people who respond to advertisements. The Department of Labor devised the regulatory process for labor certification that compels employers to place ads to test the labor market and to use the responses of U.S. workers as indicators of availability. The process has been criticized for wasting workers’ time and raising their expectations but is not required under the law.

On labor certification, the Immigration and Nationality Act states: “Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified . . . that—(I) there are not sufficient workers who are able, willing, qualified . . . and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.”

Immigration attorney Gary Endelman, later an immigration judge, examined the history of labor certification and found, “There was no mention of individualized recruitment in the proposed labor certification regulations on November 19, 1965, or the final version of these same implementing rules that came out on December 3, 1965. There was no sense that employers had to advertise; the availability of U.S. workers, or their nonavailability, was based solely on statistics as embodied in Schedules A and B, respectively.”

In discussing the labor certification requirement in the 1965 Act, Senator Edward Kennedy (D-MA), a chief advocate and cosponsor of the legislation, said, “It was not our intention, or that of the AFL-CIO, that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration. We know that the Department of Labor maintains statistics on occupations, skills, and labor in short supply in this country. Naturally, then, any applicant for admission who falls within the categories should not have to wait for a detailed study by the Labor Department before his certificate is issued.” Sen. Kennedy added, “We would expect the Secretary of Labor to devise workable rules by which he could carry out his responsibilities under the law without unduly interrupting or delaying immigration to this country. The function of the Secretary is to increase the quality of immigration, not to diminish it below levels authorized by the law.”

Basing labor certification on a specific job also runs contrary to economics, because it assumes there is a fixed number of jobs in the economy. Adding workers to the labor force, who are also consumers, typically increases job opportunities. A larger labor force provides more incentive for businesses to invest in new or existing enterprises. A study by economists Giovanni Peri, Kevin Shih, Chad Sparber and Angie Marek Zeitlin found that denying entry to H-1B visa holders due to the H-1B annual limits inhibited job growth for U.S.-born professionals. “The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55% faster between 2005-2006 and 2009-2010, if not for the denial of so many applications in the recent H-1B visa lotteries,” concluded the economists.

A National Foundation for American Policy study by University of North Florida economist Madeline Zavodny found, “H-1B visa holders do not adversely affect U.S. workers. On the contrary, the evidence points to the presence of H-1B visa holders being associated with lower unemployment rates and faster earnings growth among college graduates, including recent college graduates.”

A Missed Opportunity For Immigration Reform Under Biden

The Biden administration missed an opportunity to change the employment-based immigration process by adding occupations to the Schedule A list that exempts immigrants from the labor certification requirement. In Dec. 2023, the Department of Labor requested information from the public on occupations to include on the Schedule A list. A Biden executive order anticipated adding science and technology occupations to the list, including those related to AI.

The Department of Labor has not updated Schedule A since 2004. The U.S. Chamber of Commerce noted in its comments to DOL, “Only physical therapists, professional nurses and immigrants of exceptional ability in the arts, sciences, and performing arts” are currently listed on Schedule A and exempt from labor certification. “A modernized Schedule A that is routinely updated to reflect the conditions of the American economy would not only benefit many companies seeking to meet their workforce needs, but it would also help the Labor Department make better use of its limited resources.”

On February 15, 2024, rather than begin the process of publishing a proposed rule, DOL extended the Request for Information comments deadline to May 13, 2024. After that, DOL took no further action on Schedule A.

A New Immigration Rule On the Regulatory Agenda

The Trump administration has placed on its regulatory agenda a rule to change labor certification. “The Department of Labor’s Employment and Training Administration is initiating rulemaking to modernize aspects of the permanent labor certification process or PERM program for U.S. employers seeking to employ foreign nationals on a permanent basis,” according to a summary of the rulemaking agenda item. “The Department will seek to modernize the standards and procedures by which the Department receives and reviews employers’ applications for permanent labor certification by improving the minimum standards for recruiting qualified U.S. workers, strengthening safeguards for U.S. Workers impacted by layoffs, and enhancing employer compliance with program requirements related to non-discriminatory recruitment and hiring practices, and record retention requirements.”

According to DOL, “The rulemaking will result in a labor certification process that better reflects current labor market dynamics and ensures employers experiencing true shortages of high-skilled labor are permitted access to the permanent employment-based immigration process.”

Krystal Alanis of Reddy Neumann Brown expects DOL will change some outdated methods to demonstrate no willing and equally qualified worker is available for the position, most notably requiring two Sunday print newspaper advertisements. She expects a shift toward online job search platforms.

Alanis also anticipates DOL to focus on ensuring PERM recruitment is conducted in a non-discriminatory manner. “This concern was reflected in the DOJ’s complaints against Facebook, Apple and most recently Cloudera,” she said in an interview. “Practically, this could mean expanded audits, with the DOL requesting documentation to verify that an employer’s PERM recruitment practices closely align with their standard recruitment practices, including which recruitment mediums employers use and how they instruct applicants to apply for positions.”

Employers have always been bound by good-faith recruitment principles, but the new rule may further emphasize that standard. The Justice Department’s Civil Rights Division reached a settlement in August with OpenAI, stating in a press release , “OpenAI did not advertise positions it sought to fill through the PERM program on its external job website, even though its standard practice was to do so with other jobs.”

Alanis believes the rule will attempt to provide stronger protections for U.S. workers affected by layoffs. “This could mean expanded notification and consideration requirements for employers that recently had layoffs.”

Given other Trump administration immigration policies, it is unlikely employers or potential immigrants will welcome the new rule. “The practical effect of these anticipated regulatory changes is likely to increase employer compliance obligations and scrutiny in the PERM process,” said Alanis. “What most people don't realize is how demanding the process already is for employers to sponsor foreign workers. That being said, this rule will likely introduce new compliance obligations into an already complex and highly regulated process.”